Frank A. Pasquale
Abstract: Unfair and deceptive practices of controllers and processors of data have adversely affected many citizens. New threats to individuals’ reputations have seriously undermined the efficacy of extant regulation concerning health privacy, credit reporting, and expungement. The common thread is automated, algorithmic arrangements of information, which could render data properly removed or obscured in one records system, nevertheless highly visible or dominant in other, more important ones.
As policymakers reform the law of reputation, they should closely consult European approaches to what is now called the “right to be forgotten.” Health privacy law, credit reporting, and criminal conviction expungement need to be modernized for the digital age to reflect the power of aggregating intermediaries. Search engines, social networks, and other digital tools may maintain the salience and power of certain information long after formal processes have determined it to be untrue, irrelevant, or unfair. They must take on new responsibilities in order to reflect the values inherent in older schemes of reputation regulation.